If you invite someone to help you do something but then you decide you no longer appreciate the way they provide that help, there is a simple solution — tell them you no longer need their help and do it yourself.
This thought has come to my mind repeatedly in the last few days as some of Alaska’s public employee union representatives have responded to the governor’s administrative order on union dues collection. The only reason that the state is in the position of having to interpret and apply the United States Supreme Court’s decision in Janus v. AFSCME is because some years ago, the Legislature passed a law at the unions’ urging requiring the state to collect dues for unions from their members — state employees.
If the public unions and their voluntary members want the state to stay out of dues collection, then they can simply have the unions collect the dues directly from their members. Ask the Legislature to repeal the statute that requires the state to be the unions’ collection agent. Then, have the unions and their members conduct their own private financial transactions. Simple solution.
But, so long as the unions insist that the state take money out of employee’s paychecks and pay it to the unions, the state must comply with the First Amendment. No matter whether it’s an agency fee, union dues or any other fee. Before the state can take any amount of money out of an employee’s paycheck and give it to the union, the state must have clear and compelling evidence that the employee affirmatively exercised their First Amendment right to align their speech and association with the union.
The suggestion that the Janus decision only addresses agency fees paid by non-union members misses the core of the court’s holding. Whether it’s an agency fee or dues, it is money that belongs to the employee that the state is taking from the employee and giving to a union. The Supreme Court specifically stated “(u)nless employees clearly and affirmatively consent before money is taken from then, this (clear and compelling) standard cannot be met.” Lower courts are not free to strip content from principle by confining the Supreme Court’s holdings to the precise facts before it. The Supreme Court does not sit to decide cases that will control only cases having identical facts. Rather, the Court lays down broad-brush principles of constitutional law for the nation. Constitutional rights, by their very nature, apply to everyone equally.
The notion that the state is patronizing union members by not accepting the prior elections the unions solicited from them is untrue. Under Janus, if the state is acting as the union’s collection agent, then the state must itself have clear and compelling evidence that the employee made a knowing, voluntary and informed choice to affirmatively opt in to the union.
The state now has no way to assure itself by clear and convincing evidence that employees’ prior elections were knowing, voluntary, and informed because the state played no part in the prior dues election process. The state has no idea what the unions did or did not tell employees about their First Amendment rights when those elections were elicited. Multiple state employees have come forward and stated that they were incorrectly told that they had no choice but to join the union.
The state cannot presume when it takes money out of an employee’s paycheck and gives it to an organization that engages in political speech as unions do. It is the employee’s money and it is the employee’s choice. In order to satisfy its obligation to protect its employees’ First Amendment rights, the state must have clear and compelling evidence of the employee’s choice.
The union representatives clamoring about “privacy” and how the relationship between the unions and their members is private fail to recognize reality. The financial transaction of paying union dues ceased being a private matter when the unions enlisted the state as their collection agent. If you want an arrangement to be “private,” then you do not invite the state to be a part of the arrangement. Deliberately inviting the state to be a part of your financial transaction is the opposite of conducting a private transaction.
Unions can conduct their own private affairs by asking the employees who join the union to pay dues directly to the union, voluntarily. Stop complaining about the state’s compliance with Janus and the First Amendment and simply take the state out of the equation altogether.
Kevin Clarkson is the attorney general for the state of Alaska.
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